Breaking news: "Former U.S. President James Earl Carter sentenced to three years in jail"

That’s what the news headlines should say; instead newspapers are reporting Carter’s "negotiations" with the terrorist organization, Hamas. Following Carter’s negotiation with Hamas, perhaps we can expect that Carter will announce a peace deal has been
"Negotiated" with al-Qaeda; but that may be difficult from a jail cell where Carter belongs.

What law did Carter violate that should land him in jail; the Logan Act. The law has been on the books since January 30, 1799 [1 Stat. 613, codified at 18 U.S.C. § 953 (2004)].

The Logan Act is a federal statute that makes it a crime for a citizen to confer with foreign governments against the interests of the United States. Specifically, it prohibits citizens from negotiating with other nations on behalf of the United States without authorization.

Congress passed the Logan Act in 1799, less than one year after passage of the Alien and Sedition Acts (which unfortunately are no longer on the books).

The 1799 law was named after Dr. George Logan, a prominent Quaker physician from Pennsylvania. In the late 1790s, France embargoed trade from the United States and also jailed U.S. seamen. Quite naturally this created animosity between the two countries. As a Neville Chamberlain type, similar to Carter, Logan sailed to France in the hope of improving relations with the United States. The Federalists didn’t like the idea of an unauthorized person handling the country’s foreign policy so to prevent U.S. citizens from interfering with negotiations between the United States and foreign governments in the future, the John Adams administration introduced the bill that would become the Logan Act.

"Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States, shall be fined under this title or imprisoned not more than three years, or both.

This section shall not abridge the right of a citizen to apply himself, or his agent, to any foreign government, or the agents thereof, for redress of any injury which he may have sustained from such government or any of its agents or subjects."

Grounds to enforce the Logan Act have occurred during many administrations but authorities have been reluctant to take action under the law, mainly for political reasons.

One example of the act's use as a threat of prosecution involved the Reverend Jesse Jackson. In 1984 Jackson took well-publicized trips to Cuba and Nicaragua. President Ronald Reagan suggested that Jackson's activities may have violated the law, but Jackson was not pursued beyond a threat.

Reagan was also incensed in 1987 and 1988, at what he felt was "intrusion" into the negotiations between Nicaragua's Sandinista government and the Contras for a cease-fire by House Speaker Jim Wright. The National Security Council considered using the Logan Act against Wright, but nothing ever came of that too.

In another case, U.S. citizen John D. Martin, a prisoner of war in North Korea, was brought before a court-martial for collaborating with North Korean authorities and conducting "re-education" classes in the prison camp where he was held. The case was dismissed for the technical reason that the court-martial had no jurisdiction over acts he committed after the expiration of his enlistment.

However, In United States v. Curtis-Wright Export Corp. (1936), Justice Sutherland wrote in the majority opinion for the U.S. Supreme Court:

"[T]he President alone has the power to speak or listen as a representative of the nation. He makes treaties with the advice and consent of the Senate; but he alone negotiates. Into the field of negotiation the Senate cannot intrude, and Congress itself is powerless to invade it."

Sutherland also noted in his opinion the Senate Committee on Foreign Relations report to the Senate of February 15, 1816:

"The President is the constitutional representative of the United States with regard to foreign nations. He manages our concerns with foreign nations, and must necessarily be most competent to determine when, how, and upon what subjects negotiation may be urged with the greatest prospect of success. For his conduct, he is responsible to the Constitution."

It’s not as if congress was not warned about conduct in violation of the Logan Act, but Speaker Nancy Pelosi ignored the admonition and held discussions with Middle East leaders. In a memorandum dated September 29, 2006, and entitled "MEMORANDUM FOR ALL MEMBERS AND OFFICERS", from the Committee on Standards of Official Conduct of the United States House of Representatives, regarding the subject of "Post-Employment and Related Restrictions for Members and Officers" members of the House were cautioned regarding activities that may implicate the Logan Act:

"Members should further be aware of a permanent federal statutory restriction that prohibits any U.S. citizen acting without authority of the United States from: ‘Directly or indirectly commencing or carrying on any correspondence or intercourse with any foreign government, or any officer or agent thereof, with the intent to influence the measures or conduct of any foreign government or of any officer or agent thereof in relation to any disputes or controversies with the United States, or to defeat the measures of the United States."

In June 2007, Representative Steve King introduced legislation that would have prohibited Speaker of the House Nancy Pelosi from using federal funds to travel to foreign states which the U.S. deems to sponsor terrorism. King claimed that Pelosi's dialogue with the Syrian government violated the Logan Act but the legislation was not adopted.

In 1802, a Kentucky farmer wrote a newspaper article advocating that the western part of the U.S. form a new nation allied to France. A United States attorney (John Marshall's brother-in-law!) got an indictment against the farmer.

I agree with attorney Marty Lederman who in commenting on the 1802 case wrote "I think there's much to be said for the notion that insofar as actual U.S. communications with the outside world are concerned, the President is to be (in Marshall's famous words) the 'sole organ' by which U.S. policy is conveyed (consistent, again, with statutory direction). More broadly, as far as official U.S. execution of the law is concerned, Congress and its members and/or agents can have no role, once the process of bicameralism and presentment is completed."

The prohibition of this statute, read literally, has been constantly violated since its enactment, but that is unfortunate. Failure to apply the statute to those that seek to undermine the President’s sole authority to conduct foreign policy leads to such despicable actions as practiced by Carter in his negotiation with Hamas for the destruction of Israel.